1 Definition of Terms
(a) The ‘Owner’ is ELLIOTT GROUP LIMITED (company number 147207)
whose registered office is at Manor Drive, Peterborough, PE4 7AP and
includes its successors or assigns
(b) The ‘Hirer’ is the Company, Firm, Person, Corporation or Public
Authority taking the Owner’s equipment on hire and includes their
successors or personal representatives
(c) ‘Equipment’ means all classes of relocatable buildings, modular
buildings, erectable structures and accessories thereon, furniture,
fencing and all other plant which the Owner agrees to hire to the Hirer
(d) “Commencement Date” means the date specified in the Contract
(e) “Period of Hire” means the period specified in the Contract
(f) “Hire Charges” means the amounts set out in the Contract at their
full face value without any deduction set off or counterclaim whatsoever
(g) A ‘Week’ shall be seven consecutive days.
(h) ‘Contract’ means a contract between the Owner and the Hirer for
the hire of a unit of Equipment.
(i) ‘Site’ means the site to which the Equipment is delivered (or to be
delivered) on the Hirer’s instructions.
2 Extent of Contract
2.1 The Contract and these Conditions of Hire shall be the entire
agreement between the parties.
3 Period of Hire
3.1 Hire of the Equipment shall commence on the Commencement Date and
shall continue for the Period of Hire subject to termination as herein provided.
3.2 Either party may terminate the hire by giving to the other:
(a) in the case of Equipment which comprises modular building system not less
than 3 calendar months notice in writing
(b) in the case of Equipment which comprises buildings requiring erection and
dismantling not less than 28 days notice in writing
(c) in any other case not less than 7 days notice in writing
3.3 If the hire is terminated prematurely the Owner is entitled to payment in
full for the Period of Hire stated.
4 Charges for Hire
4.1 The Hirer will pay to the Owner during the Period of Hire the Hire
Charges in the amounts and at the intervals stated in the Contract.
4.2 The Owner reserves the right to review the Hire Charges at the end of
the Period of Hire stipulated in the Contract and at yearly intervals thereafter.
4.3 The Owner shall submit invoices for all charges due under the contract
at the frequency detailed in the Contract. Invoices shall include Value Added Tax
where applicable.
4.4 Unless otherwise agreed by the Owner in writing payment shall be made
within 30 days of the date of the invoice. Payment shall be made by Direct Debit
if so requested by the Owner.
4.5 Where a single payment is made to cover the whole Period of Hire, the
amount shall be paid on the Commencement Date.
4.6 If payment is not made when due the Owner shall be entitled to charge
interest on the overdue amount at four per cent above the prevailing
base rate of Barclays Bank Plc calculated on a daily basis (“the Default Rate”).
The Hirer shall also be liable to pay any charges incurred by the Owner in the
recovery of overdue amount or the Equipment. These remedies shall be
without prejudice to any other rights and remedies available to the Owner.
5 Delivery and Collection
5.1 Time for delivery is given as accurately as possible but is not
guaranteed. The Hirer hereby acknowledges that time shall not be of
the essence with regard to time and date for delivery of Equipment. The
Hirer shall have no right to damages or to cancel the contract for failure
for any cause to meet any delivery time stated. The date of delivery
shall in every case be dependant upon prompt receipt of all necessary
information, final instructions or approvals and delivery details from the
Hirer in writing. Alterations by the Hirer in design specifications or
requirements may result in delay in delivery.
5.2 The Owner will endeavour to comply with reasonable requests by the
Hirer for postponement of delivery but shall be under no obligation to do
so. Where delivery is postponed otherwise than due to default by the Owner:-
5.2.1 The Hirer shall remain liable for any Hire Charges payable in
accordance with these conditions.
5.2.2 The Owner shall be entitled to terminate the Contract upon giving
the Hirer three working days notice in writing of its intention to do so.
5.3 The Hirer shall provide adequate and unrestricted access to the
proposed Site for delivery unloading reloading and recovery of the Equipment.
5.4 The Hirer shall pay all costs (at the Owner’s rates current from time to
time) relating to the loading, transporting and unloading of the Equipment upon
delivery and collection of the Equipment to/from the Hirer’s Site.
5.5 The Hirer shall unless otherwise stated in sufficient time and at its own
expense provide suitable foundations for the Equipment, such foundations to
conform with any instruction specification drawing, which may be supplied
by the Owner.
5.6 Unless the Owner has agreed in writing to the contrary with the Hirer:
(i) The Owner shall not be under any obligation to provide any additional
plant lifting gear or special apparatus, other than that carried by the
vehicle, required for siting any consignment.
(ii) The Owner shall also not be under any obligation to provide power or
labour, other than that carried by the vehicle.
(iii) The Hirer warrants that any special appliances required for siting the
consignment, which are not carried by the vehicle, will be provided by
the Hirer or on the Hirers behalf.
(iv) The Owner shall be under no liability whatever to the Hirer for any
damage whatever, however caused, if the Owner is instructed to load
or unload any consignment requiring special appliances, which in
breach of the warranty in (iii) above, have not been provided by the
Hirer or on the Hirers behalf.
(v) The Owner shall provide the vehicle and its undertakings (including
loading and unloading activities) under the Road Haulage Association (RHA)
Terms and Conditions except when 5.6(a), (i), (ii) and (iii) below.
(vi) The Hirer shall make available to the Owner upon request details of
any risk assessments, which may have been carried out at the
collection and/or delivery address. The responsibility for carrying out
such risk assessments shall be that of the Hirer and not of the Owner.
(vii) The Hirer shall make available to the Owner upon provision of the
vehicle a competent person to fully manage the lifting operation
associated with the loading and unloading undertaken by the vehicle,
having previously planned the predicted lifting operation in
accordance with BS7121: Part 1:1989 and Part 4:1997.
5.6.1 (a) Where the Hirer has agreed in writing with the Owner:
(i) The Hirer shall bear the full cost of any additional plant lifting gear or
special apparatus hired by the Owner for the purpose of siting the
equipment.
(ii) The Owner will provide additional plant by entering into a contract
with another party (the contractor) who will undertake the lifting
operation on the Owners behalf in accordance with BS 7121 – Safe
Use Of Cranes, Part 1:1989 and Part 4:1997 where applicable. The
Contractor will be responsible for the management and planning of
the lifting operation (undertaking a ‘Contract Lift’) notwithstanding the
Hirers responsibilities under BS 7121.
(iii) The Owner will enter into a contract with another party under the
Contractors Plant Association Model Conditions for the Hiring of
Plant (‘CPA Model Conditions) for which the Hirer shall fully
indemnify the Owner against any claims arising thereof.
5.7 All employees sub-contractors and agents of the Owner shall be deemed
whilst on the Site or other premises of the Hirer or of any third party to be
servants or agents of the Hirer who alone shall be responsible for and
shall indemnify the Owner against all claims by any person firm or
company (including the Owner) arising out of or connected with the
delivery collection movement loading unloading siting or installation of
the Equipment.
5.8 Where, in the Owner’s opinion, the ground in and around the Site
(including all private roadways accesses main pipes manholes
weighbridges or approaches under through our over which the Owner its
servants agents or contractors might have to pass in the performance of
any obligation) is soft or otherwise unsuitable the Hirer shall in sufficient
time and at its own expense supply and lay a surface in a suitable
position for the Equipment to travel over or stand on during the loading
and unloading at the Site.
5.9 Connection and disconnection of mains services on Site and the
suitability of those services are the responsibility of the Hirer unless
otherwise agreed between the parties in writing.
5.10 The Hirer shall be responsible for obtaining any necessary permissions
from the owner of the Site for the entry into the Site and the siting of the
Equipment on the Site. The Hirer shall indemnify the Owner against all
claims by any person firm or company (including the Owner) arising out
of or connected with the delivery collection movement loading unloading
siting or installation of the Equipment on the Site.
5.11 The Hirer authorises the Owner to accept the signature on delivery and
collection of the Equipment of any person reasonably holding
themselves out to be the Hirer’s representative whether such person be
so authorised or not.
6 Acceptance of Equipment
6.1 Acceptance of the Equipment shall be deemed to take place when the
Equipment is delivered on Site.
7 Termination
7.1 If the Hirer:
(a) shall fail to pay any Hire Charges or other sums due and payable
under the contract in full by the due date;
(b) being a Company
(i) Has a petition presented for its winding up
(ii) Passes a resolution for voluntary winding up (other than for
the purpose of a Bona fide amalgamation or
reconstruction) or
(iii) Enters into a voluntary arrangement with its creditors or
(iv) Becomes subject to an administration order or
(v) Has a receiver appointed of all or any of its assets,
(c) being an individual or firm,
(i) Becomes bankrupt or insolvent
(ii) Enters into voluntary arrangements with his creditors.
(d) In either case, commits a serious breach of this agreement (and in
case of such breach being remediable (other than failure by the
Hirer to pay the Hire Charges), fails to remedy it within 7 days after
receiving written notice to do so); then, the Owner shall be entitled to
treat the Contract as being at an end or suspend any further deliveries
under the contract without liability to the Hirer. If the goods have been
delivered but not paid for, the price shall become due immediately
regardless of any previous agreement to the contrary.
8 Availability
8.1 Quotations are offered subject to the availability of the Equipment at the
time of Hiring, and the Owner reserves the right to offer an alternative
item of Equipment should the original quoted not be available.
9 Inspection, Servicing and Repairs
9.1 The Hirer shall be responsibility to the Owner for the duration of the hire
for the safekeeping of the Equipment and for its use in a proper and
workmanlike manner. The Hirer shall not use the Equipment for any
purpose beyond its capacity or in any manner which, in the Owner’s
Opinion is likely to result in undue deterioration or its becoming
immobilised immovable or otherwise inaccessible.
9.2 The Hirer shall keep the Equipment in good and substantial repair and
condition and when the Period of Hire extends beyond 3 years shall
redecorate and refurbish the Equipment both externally and internally in
a manner and to a standard approved by the Owner.
9.3 The Hirer shall at all reasonable times permit the Owner and its agents
access to the Equipment to inspect test adjust repair altar or replace the
same.
9.4 The Hirer shall not (except as required by these conditions) without the
prior written consent of the Owner adjust repair or alter the Equipment or
make any attempt so to do.
9.5 If at any time during the Period of Hire the Equipment or any part thereof
is in need of adjustment or repair then: -
(a) the Hirer shall forthwith give written notice of such need to the Owner;
(b) the Owner shall with reasonable diligence either carry out the
necessary adjustment or repair on Site or at its discretion arrange
for the removal of the Equipment or part or parts thereof to the
Owner’s works for adjustment or repair;
(c) in the event of the Owner’s removing the Equipment or any part
or parts thereof the Owner may at its option adjust or repair and
re-deliver the Equipment or such part or parts with reasonable
diligence or determine the Contract forthwith in relation to the
Equipment by giving written notice to the Hirer or replace the
Equipment or such part or parts in which case the Contract shall
continue as if the substituted product or such part or parts had
been or had been included in the subject matter of the Contract;
(d) in the case of adjustment repair or substitution the Owner may at
its option apply the Owner’s hire rates current at the date of
completion of adjustment repair or substitution in place of those
set out in the Contract in respect of any such adjusted repaired or
substituted Equipment as from the date of such completion;
(e) if in the reasonable opinion of the Owner the Equipment’s
condition necessitating adjustment or repair arises in whole or in
part from any cause other than fair wear and tear then: -
(i) The Hirer shall be liable for all costs of inspection loading
unloading and transport in connection with the carrying out
of the adjustments or repairs the removal of the Equipment
or any part or parts thereof and the redelivery thereof or of
any substitute thereof; and,
(ii) Hire Charges shall continue to be payable as if the
Equipment had not been in need of adjustment or repair;
(f) If in the opinion of the Owner the Equipment’s condition
necessitating adjustment or repair is solely attributable to fair
wear and tear then:-
(i) the Owner shall be liable for all such costs as are
mentioned in (e) (i) above.
(ii) if the Owner shall determine the Contract under (c) above
within three months of the date of original delivery of the
Equipment to the Site the Owner shall be liable for the cost
of loading unloading and transport to and from the Site.
9.6 Upon termination Equipment will be inspected by the Owner and any
charges for damages/repairs excluding fair wear and tear will be
chargeable to the Hirer.
9.7 The Hirer shall be responsible for the Period of Hire for the carrying out
of all statutory inspection tests in accordance with the appropriate
regulations. This will include but not be exclusive to electrical, gas and
water services and electrical appliances. The Hirer shall indemnify the
Owner in full for all costs damages or losses howsoever caused arising
out of or connected with the failure by the Hirer to comply with any such
statutory inspection tests or regulations.
10 Insurance
10.1 The Hirer shall throughout the Period of Hire and until collection of the
Equipment (without prejudice to any liability of the Hirer to the Owner) at
its own expense insure the Equipment with a reputable insurance
company against all loss or damage and also against all risks of third
party liability arising out of the ownership presence of use of the
Equipment in an amount equal to whichever is the greater of:
10.1.1 the full new replacement value of the Equipment; and
10.1.2 the amount payable for the time being in accordance with the
provisions of clause 10.4 below
10.2 The Hirer will upon request by the Owner at any time produce to the
Owner every such policy of insurance and the receipt for the current
year’s premium. If the Hirer shall fail to keep the Equipment insured as
aforesaid to the satisfaction of the Owner or to produce any such policy
or receipt as aforesaid the Owner shall be entitled at the expense of the
Hire to insure the Equipment and keep it so insured during the period
mentioned above and the Hirer will pay to the Owner on demand any
sums expended by the Owner for such purpose with interest at the
Default Rate from the time of the same having been expended until the
date of actual repayment.
10.3 The interest of the Owner in the Equipment shall be noted on the policy
of Insurance which policy shall:
10.3.1 name the Owner as loss payee;
10.3.2 not be capable of cancellation by the insurers (at the request of
the Hirer or otherwise) other than by 30 days’ prior notice in
writing to the Owner;
10.3.3 provide that the insurers shall waive any breach of warranty
under the policy of insurance as against the Owner.
10.4 The Hirer shall (so far as necessary) irrevocably authorise the insurers
to pay to the Owner all monies payable under the said insurance policy
in respect of any loss or damage to all or any part of the Equipment.
The Hirer hereby irrevocably authorises the Owner:
10.4.1 in the name and on behalf of the Hirer to make any claim or
claims against the insurers under the said insurance policy in
respect of any loss of or damage to the Equipment or any part
thereof and to settle or compromise such claim; and
10.4.2 to receive and to give a good discharge to the insurers for any
monies payable in respect thereof
10.5 The Hirer shall not use or allow the Equipment to be used for any
purpose not purpose not permitted by the terms and conditions of any
policy of insurance for the time being relating to the Equipment nor do or
allow to be done any act or thing whereby such insurance may be
invalidated.
10.6 In the event of any loss of or damage to all or any part of the Equipment
the Hirer shall give immediate notice to the Owner and shall make or
assist in the making of any appropriate claim or claims under the said
insurance policy in such manner as the Owner shall require and shall not
in any manner settle or compromise any such claim without the prior
written request of the Owner.
10.7 The Hirer shall promptly reinstate or repair at its own expense
Equipment which has not become a total loss or a constructive total loss
and shall continue to pay Hire Charges in respect of such Equipment
during such reinstatement or repair. All insurance monies received in
respect of any such loss shall be applied firstly in or towards payment to
the Owner of any amounts for the time being due and outstanding from
the Hirer to the Owner hereunder and secondly in or towards
reimbursing the Hirer for the costs of such reinstatement of repairs.
10.8 In the event that during the Period of Hire any item of the Equipment
(‘the Destroyed Equipment’) shall become a total loss or a constructive
total loss (whether as a result of its being lost destroyed damaged
beyond repair confiscated or otherwise) the hire thereof hereunder shall
cease. In that event the Owner may apply any insurance proceeds
received by it at its option:
10.8.1 towards a replacement of equivalent size and value which
replacement shall be deemed included in this Agreement for all
purposes and the Hirer shall continue to be liable to pay Hire
Charges in accordance with this Agreement as if such loss has
not taken place; or
10.8.2 towards payment to the Owner of:
10.8.2.1 all payments of Hire Charges and all other monies then due or
in arrear under this Agreement in respect of or attributable to
the Destroyed Equipment together with interest thereon at the
Default Rate; and
10.8.2.2 all other sums and amounts due hereunder in respect of the
Destroyed Equipment in question including a sum equal to that
payable under Clause 11.1 below in respect of the termination
of hire of the Destroyed Equipment
10.9 The Hirer shall remain liable to pay to the Owner any shortfall. Until such
sums and any shortfall as aforesaid are paid the obligations of the Hirer
under the Agreement (including those to pay Hire Charges in respect of
the Destroyed Equipment) shall continue. Any surplus shall be paid to
the Hirer.
11 Limitation of Liability
The Hirer agrees that the Owner will not be liable under the Contract or these
Conditions of Hire or any collateral contract for any loss of income profit
goodwill or contracts or any special indirect incidental or consequential loss or
damage of any kind howsoever arising and whether caused by tort (including
negligence) breech of contract or otherwise.
Non exhaustive illustrations of consequential and indirect loss would be:
(a) Loss of profit
(b) Loss of Contract
(c) Damage to property of the Hirer or anyone else
(d) Personal injury to the Hirer or anyone else (but only so far as such injury
is not Caused by the Owner’s negligence).
12 Sub Letting
12.1 The Hirer shall not rehire, sell, mortgage, charge, pledge, part with
possession of, or otherwise deal with the Equipment or its contents and
shall protect the same against distress, execution or seizure and shall
indemnify the Owner against all losses, damages, costs, charges and
expenses that may be occasioned by any failure to observe and perform
this condition.
12.2 The Hirer shall not assign his rights hereunder nor sub-let or lend the
Equipment or any part thereof to a third without the prior written consent
of the Owner.
13 Change of Site
13.1 The Equipment shall not be removed from the Site to which it was
delivered or consigned without the authority of the Owner, such authority
to be confirmed in writing prior to any such movement taking place.
14 Identification Marks
14.1 The Owner retains the right to affix a mark or plate on the Equipment
identifying it as the Owner’s property and the Hirer shall not remove,
deface or cover up the same.
14.2 The Hirer shall not be permitted to affix any mark or plate on the
Equipment unless prior written authority has been given by the Owner.
The Hirer will be responsible for the cost of rectification or reinstatement
at the termination of the hire period.
15 Specification and Copyright
15.1 Specifications drawings data literature and statements as to dimensions.
Suitability performance or otherwise issued by the Owner in connection
with the Equipment are offered in good faith but are intended to be
approximate only and the Equipment is supplied subject to no conditions
nor shall it carry any guarantee or warranty as to dimensions quality
fitness performance or suitability.
15.2 Except in any particular case in which the Owner expressly agrees in
writing to the contrary the Hirer is responsible for the correct selection of
the Equipment and while the Owner may supply drawings make
recommendations or assistance and shall rely solely on such expertise
as may be available to the Hirer from its own or other technical sources.
15.3 The copyright in drawings date and literature relating to the Equipment
and the Owner’s goods and services shall remain the property of the
Owner and (where marked as or otherwise indicated to be confidential)
such drawings data and literature and the Owner manufacturing and
operating techniques shall not be disclosed or used except necessarily
for the purpose of application and use by the Hirer of the Equipment.
16 Loss or Damage to Equipment
16.1 The Hirer is responsible for the safe keep of Equipment during the
Period of Hire and for its return to the Owner at the termination of hire. If
the Hirer fails to return the Equipment for whatever reason whether as a
result of theft, loss, destruction or otherwise, whether due to negligence
on the part of the Hirer, his servants and/or his agents or not the Hirer
shall be liable to the Owner for:
(a) the cost of replacement of the Equipment together with all costs
arising therefrom and
(b) the Owner’s hire charges until payment of the costs under clause
16.1(a)
17 Notice of Accidents
17.1 If the Equipment is involved in any accident resulting in injury to persons
or Damage to property, immediate notice must be given to the Owner by
telephone and confirmed in writing to the (Office Manager) at the Owner’s
office, and in respect of any claim not within the Hirer’s agreement for
indemnity no admission, offer, promise of payment or indemnity shall be
made by the Hirer without the Owner’s consent in writing.
18 Safety Instructions
18.1 The Hirer must ensure that everyone who uses the Equipment is
properly. Instructed on how to use them safely and correctly, and that
they have all the instructions that have been supplied. The Hirer must
ensure the Equipment is not misused.
19 Force Majeure
19.1 The Owner shall not be under any liability for any consequences and
delay or failure in carrying out the contract caused by Force Majeure or
circumstances outside the direct control of the Owner.
20 Environment Policy
20.1 The Owner has a strict Environmental Policy. It is the Hirer’s responsibility
That all Equipment including but not limited to Offices. Canteens, Secure
Stores, Toilets, Showers and Drying Rooms must be returned clean and
free from waste materials, and that effluent tanks must be emptied.
20.2 The Owner reserves the right to refuse to collect Equipment off hired but
not cleaned and/or emptied. Equipment which is returned without being
cleaned and /or emptied will be cleaned by a specialist contractor, the
cost of which shall be recharged to the Hirer.
20.3 Any items or materials left in the Equipment after collection shall be
disposed of by the Owner. If, in the Owner’s opinion, the items or
materials are of a valuable nature the Owner shall hold these items for
28 days and therefore shall dispose of them.
21 Government Regulations
21.1 The Hirer is solely responsible for applying for, obtaining and complying
with all obligations imposed by any Act of Parliament statutory
instrument statutory regulations and all third party rights in relation to the
installation use and removal of the Equipment including but without
prejudice to the generality of the foregoing the Building Regulations Acts
the Offices Shops and Railway Premises Acts The Health and Safety at
Work etc. Acts the Town and Country Planning Acts and all obligations
and third party rights relating to the purposes for which the Equipment is
used or to its condition delivery sitting or removal. The Hirer shall
indemnify the Owner in full for all costs damages or losses howsoever
caused arising out of or connected with the failure by the Hirer to comply
with any such statutory requirements.
22 Rights Reserved
22.1 Any failure by us to enforce any or all of these Conditions shall not
amount to or be interpreted as a waiver of any of our rights.
23 Supplement to Elliott Group Terms and Conditions of Hire-Damage
Waiver.
These conditions are in addition to those printed in Elliott Group
Conditions of Hire and shall take precedence where applicable if the
customer has taken up the Damage Waiver option. If the customer
declines the Damage Waiver, then they are liable under the standard
Terms and Conditions of Hire for any damage or losses to the
Equipment above fair wear and tear.
Damage Waiver Option
If the Hirer pays the appropriate Damage Waiver percentage charge as
shown on the Hire Contract, then Elliott Group will waive charges for
rectifying accidentally damaged returned equipment. Elliott Group will
also waive any charges for Equipment loss subject to the following
conditions:
i) The Hirer must demonstrate that reasonable care has been taken
to prevent loss or damage, including recommended checking of
oil/water levels on powered equipment.
ii) Theft of Equipment must be reported to Police and a crime
reference number obtained.
iii) The Hirer must notify Elliott Group immediately on discovery of
theft and complete a Theft Notification Form supplied by us.
iv) Exclusions: Loss and Damage charges will not be waived under
the following circumstances: -
a. Loss of or damage to loose items not physically attached to
the Equipment such as furniture.
b. Loss due to the dishonesty of the Hirer or the Hirer’s employee.
c. Loss of Equipment revealed only when an inventory is made.
d. Loss occurring outside the UK.
v) Limit of claims: Damage Waiver does not protect the Hirer for: -
a. The first £75 plus VAT for any storage container.
b. The first £125 plus VAT for any other accommodation unit up
to 30 feet in length.
c. The first £175 plus VAT for any other accommodation unit
over 30 feet in length.
d. Loss of generating equipment in powered units.
vi) The Hirer cannot decline Damage Waiver, then later change their
mind. Acceptance of Damage Waiver by Hirer must be within ten
working days of hire commencement or by prior agreement of
Hirer for acceptance automatically to all Contracts.
24 Interpretation and Law
24.1 These conditions shall be interpreted without reference to their headings.
24.2 The Contract and these Conditions of Hire shall be governed by and
construed in accordance with English Law. The Hirer irrevocably
submits to the exclusive jurisdiction of the English Courts.
ELLIOTT GROUP LIMITED
CONDITIONS OF SALE
1 Interpretation:
1.1 In these Conditions:
“Company” means ELLIOTT GROUP LIMITED whose registered office is at Manor Drive,
Peterborough, PE4 7AP (registered number 147207)
“Conditions” means the standard terms and conditions of sale set out in this document and
(unless the context otherwise requires) includes any special terms and conditions agreed in
writing between the Customer and the Company
“Contract” means the contract for the purchase and sale of the Goods
“Customer” means the person who accepts a quotation of the Company for the sale of the Goods
or whose order for the Goods is accepted by the Company
“Goods” means any materials equipment plant or services (including any instalment of
the same or any parts for them) which the Company is to supply in accordance
with these Conditions
“Handover” means as defined in clause 6.6
“Writing” includes telex cable facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as reference to
that provision as amended re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their
interpretation.
2 Basis of the sale
2.1 The Company shall sell and the Customer shall purchase the Goods in accordance with any
written quotation of the Company which is accepted by the Customer or any written order of the
Customer which is accepted by the Company subject in either case to these Conditions which
shall govern the Contract to the exclusion of any other terms and conditions subject to which
any such quotation is accepted or purported to be accepted or any such order is made or
purported to be made by the Customer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the
authorised representatives of the Customer and the Company.
2.3 The Company’s employees or agents are not authorised to make any representations concerning
the Goods unless confirmed by the Company in writing. In entering into the Contract the
Customer acknowledges that it does not rely on and waives any claim for breach of any such
representations which are not so confirmed
2.4 Any advice or recommendation given by the Company or its employees or agents to the
Customer or its employees or agents as to the application or use of the Goods which is not
confirmed in writing by the Company is followed or acted upon entirely at the Customers own
risk and accordingly the Company shall not be liable for any such advice or recommendation
which is not so confirmed
2.5 Any typographical clerical or other error or omission in any sales literature quotation price list
acceptance or offer invoice or other document or information issued by the Company shall be
subject to correction without any liability on the part of the Company.
3 Orders and specifications
3.1 No order submitted by the Customer shall be deemed to be accepted by
the Company unless and until confirmed in writing by the Company’s
authorised representative
3.2 Acceptance of ordered is subject to the receipt of Satisfactory references
3.3 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any
order (including any applicable specification) submitted by the Customer and for giving the
Company any necessary information relating to the Goods within a sufficient time to enable the
Company to perform the Contract in accordance with its terms
3.4 The quantity quality and description of and any specification for the Goods shall be those set out
in the Company’s quotation (if accepted by the Customer) or the Customer’s order (if accepted
by the Company)
3.5 Any descriptive specifications drawings particulars and dimensions submitted in connection
with the Company’s quotations are approximate only. Descriptions and illustrations contained
in catalogues price lists and other advertisement matter of the Company are only intended to
present a general idea of the goods described therein and shall not form part of any contract. All
drawings calculations and descriptive matter furnished by the Company to the Customer in
connection with quotations remain the property of the Company and must not be copied and/or
shown to any third party without the Company’s consent in writing.
3.6 If the Goods are to be manufactured or any process to be applied to the Goods by the Company
in accordance with a specification submitted by the Customer the Customer shall indemnify the
Company against all loss damages costs and expenses awarded against or incurred by the
Company in connection with or paid or agreed to be paid by the Company in settlement of any
claim or infringement of any patent copyright design trade mark or other industrial or
intellectual property rights of any other person which results from the Company’s use of the
Customer’s specification
3.7 The Company reserves the right to make any changes in the specification of the Goods which
are required to conform with any applicable safety or other statutory requirements or where the
Goods are to be supplied to the Company’s specification which do not materially affect their
quality or performance or when the components or materials stipulated are not readily available
3.8 No order which has been accepted by the Company may be cancelled by the Customer except
with the agreement in writing of the Company and on terms that the Customer shall indemnify
the Company in full against all loss (including loss of profit) costs (including the cost of all
labour and materials used) damages charges and expenses incurred by the Company as a result
of cancellation
3.9 Goods sold by the Company are where practicable submitted to standard tests before despatch.
If other tests are required by the Customer these unless otherwise agreed must be made at the
Company’s premises or at a place nominated by the Company and such tests shall be at the cost
of the Customer. Any figures or particulars of performance given by the Company are based
upon experience and are such as the Company would generally expect to obtain but the
Company accepts no liability if such performance is not obtained in any particular case.
4 Price of the goods
4.1 The price of the Goods shall be the Company’s quoted price or where no price has been
quoted (or a quoted price is no longer valid) the price listed in the Company’s published price
list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or
until earlier acceptance by the Customer after which time they may be altered by the Company
without giving notice to the Customer
4.2 The Company reserves the right by giving notice to the Customer at any time before
delivery to increase the price of the Goods to reflect any increase in the cost to the
Company which is due to any factor beyond the control of the Company (such as
without limitation any foreign exchange fluctuation currency regulation insurance
overhead charges alteration of duties significant increase in the costs of labour
materials or other costs of manufacture) any change in delivery dates quantities or
specifications for the Goods which is requested by the Customer or any delay caused
by any act omission or instructions of the Customer or failure of the Customer to give
the Company adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any
price list of the Company and unless otherwise agreed in writing between the Customer
and the Company all prices are given by the Company on an ex works basis and
where the Company agrees to deliver the Goods otherwise than at the Company’s
premises the Customer shall be liable to pay the Company’s charges for transport
packaging installation and insurance.
4.4 The price is exclusive of any applicable value added tax which the
Customer shall be additionally liable to pay to the Company.
4.5 Unless otherwise stated in the Company’s quotation all packing cases crates
skids drums and other packing materials are non-returnable and chargeable.
5 Terms of payment
5.1 Subject to any special terms agreed in writing between the Customer
and the Company the Company shall be entitled to invoice the Customer
for the price of the Goods on or at any time after delivery of the Goods
unless the Goods are to be collected by the Customer or the Customer
wrongfully fails to take delivery of the Goods in which event the
Company shall be entitled to invoice the Customer for the price at any
time after the Company has notified the Customer that the Goods are
ready for collection or (as the case may be) the Company has tendered
delivery of the Goods.
5.2 The Customer shall pay the price of the Goods within 14 days of the
date of the Company’s invoice or the issue of interim valuations notwithstanding
that delivery may not have taken place and the property in the Goods has not
passed to the Customer. The time of payment of the price shall be of the essence
of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Customer fails to make any payment on the due date then without
prejudice to any other right or remedy available to the Company the
Company shall be entitled to:
5.3.1 cancel the contract or suspend any further deliveries to the
Customer
5.3.2 appropriate any payment made by the Customer to such of the
Goods (or the goods supplied under any other contract between
the Customer and the Company) as the Company may think fit
(notwithstanding any purported appropriation by the Customer)
and
5.3.3 charge the Customer interest (both before and after any
judgment) on the amount unpaid at the rate of 4 per cent per
annum above Barclays Bank base rate from time to time until
payment in full is made (a part of a month being treated as a full
month for the purpose of calculating interest)
6 Delivery
6.1 Delivery of the Goods shall be made by the Customer collecting the
Goods at the Company’s premises at any time after the Company has
notified the Customer that the Goods are ready for collection or if some
other place for delivery is agreed by the Company, by the Company
delivering the Goods to that place. All unloading facilities required for
delivery including any special equipment shall be provided by the
Customer and at his own expense
6.2 Any dates quoted for delivery of the Goods are approximate only and the
Company shall not be liable for any delay in delivery of the Goods
howsoever caused. Time for delivery shall not be of the essence unless
previously agreed by the Company in writing. The Goods may be
delivered by the Company in advance of the quoted delivery date upon
giving reasonable notice to the Customer
6.3 Where the Goods are to be delivered in instalments each delivery shall
constitute a separate contract and failure by the Company to delivery
any one or more of the instalments in accordance with these Conditions
or any claim by the Customer in respect of any one or more instalments
shall not entitle the Customer to treat the Contract as a whole as repudiated
6.4 If the Company fails to deliver the Goods for any reason other than any
cause beyond the Company’s reasonable control or the Customer’s fault
and the Company is accordingly liable to the Customer the Company’s
liability shall be limited to the excess (if any) of the cost to the Customer
(in the cheapest available market) or similar goods to replace those not
delivered over the price of the Goods
6.5 If the Customer fails to take delivery of the Goods or fails to give the
Company adequate delivery instructions at the time stated for delivery
(otherwise than by reason of any cause beyond the Customer’s
reasonable control or by reason of the Company’s fault) then without
prejudice to any other right or remedy available to the Company the
Company may:
6.5.1 store the Goods until actual delivery and charge the
Customer for the reasonable costs (including insurance) of
storage or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting
all reasonable storage and selling expenses) account to the Customer for the
excess over the price under the Contract or charge the Customer for any
shortfall below the price under the Contract
6.6 When delivery of the Goods involved the Company working on the
Customer’s premises in order to fit out a building forming part of the Goods
then Practical Completion of the Contract or part of the Contract
(“Handover”) shall occur upon the following:
6.6.1 acceptance of completion of the Goods on site by the Customer
his employee or representatives
6.6.2 any of the Customer’s employees or invitees agents or representative
entering the building storing materials or equipment in the building or
carrying out any work whatsoever in the building
6.6.3 the Customer by his actions or delay prevents the Handover
6.6.4 the Company informing the Customer in writing of Handover
whether or not the Customer has occupied the building
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Customer:
7.1.1 in the case of Goods collected by the Customer from the
Company’s premises, when the Goods leave the Company’s premises
7.1.2 in the case of Goods to be delivered otherwise than at the
Company’s premises at the time of the delivery or Handover or if
the Customer wrongfully fails to take delivery of the Goods at the
time when the Company has tendered delivery or Handover of the Goods
7.2 Notwithstanding delivery and the passing of the risk in the Goods at
any other provision of these Conditions the property in the Goods shall
not pass to the Customer until the Company has received in cash or
cleared funds payment in full of the price of the Goods and all other
goods agreed to be sold by the Company to the Customer for which
payment is then due
7.3 Until such time as the property in the Goods passes to the Customer
the Customer shall hold the goods at the Company’s fiduciary agent and
bailee and shall keep the Goods separate from those of the Customer
and third parties and properly stored protected and insured and identified
as the Company’s property. Until that time the Customer shall be
entitled to resell or use the Goods in the ordinary course of its business
but shall account to the Company for the proceeds of sale or otherwise
of the Goods whether tangible or intangible including insurance
proceeds and shall keep all such proceeds separate from any moneys or
property of the Customer and third parties and in the case of tangible
proceeds properly stored protected and insured.
7.4 Until such time as the property in the Goods passes to the Customer
(and provided the Goods are still in existence and have not been resold)
the Company shall be entitled at any time to require the Customer to
deliver up the Goods to the Company and if the Customer fails to do so
forthwith to enter upon any premises of the Customer or any third party
where the Goods are stored and repossess the Goods
7.5 The Customer shall not be entitled to pledge or in any way charge by
way of security for any indebtedness any of the Goods which remain the
property of the Company but if the Customer does so all moneys owing
by the Customer to the Company shall (without prejudice to any other
right or remedy of the Company) forthwith become due and payable
8 Erection of Goods
The Company’s quotation assumes that the site will be easy for access for all
vehicles cranes tools materials and tackle necessary to carry out the installation
and continuous performance of the work during the normal working hours.
Access to site must be suitable for such vehicle transporting the Goods to enter
the site. The Customer must provide suitable hardstanding for off-loading the
Goods adjacent to the foundations. The Company is not responsible for any
supporting structure or foundation work not designed and constructed by the
Company and accepts no responsibility direct or indirect which may be incurred
due to any insufficient or unsuitable structure or foundation. Where foundations
are installed by the Customer, the Customer must accept responsibility for the
accuracy of the setting out, dimensions, levels and where applicable, pockets
and sole plate.
9 Limitations of liability
9.1 9.1.1 The Company shall be under no liability in respect of any defect in the Goods
arising from any drawing design or specification supplied by the Customer
9.1.2 The Company shall be under no liability in respect of any defect
arising from fair wear and tear willful damage negligence
abnormal working conditions failure to follow the Company’s
instructions (whether oral or in writing) misuse or alteration
modification adjustments or repair of the Goods or to the use of
the Goods without the Company’s written approval
9.2 Where the Goods are used second hand or reconditioned they are
sold as seen and approved by the Customer and the Company does not
in any way warrant such goods to be fit for any particular purpose
express or implied
9.3 Subject as expressly provided in these Conditions and except where
the Goods are sold to a person dealing as a consumer (within the
meaning of the Unfair Contract Terms Act 1977) all warranties conditions
or other terms implied by statute or common law are excluded to the
fullest extent permitted by law
9.4 Where the Goods are sold under a consumer transaction (as defined
by the Consumer Transactions Restrictions on Statements order 1976)
the statutory rights of the Customer are not affected by these Conditions
9.5 Any claim by the Customer which is based on any defect in the
quality or condition of the Goods or their failure to correspond with
specification shall (whether or not delivery is refused by the Customer)
be notified to the Company immediately upon delivery or (where the
defect or failure was not apparent on inspection or upon delivery)
immediately upon discovery of the defect or failure. If delivery is not
refused and the Customer does not notify the Company accordingly the
Customer shall not be entitled to reject the Goods and the Company
shall have no liability for such defect or failure and the Customer shall be
bound to pay the price as if the Goods had been delivered in accordance
with the Contract
9.6 Where any valid claim in respect of any of the Goods which is based
on any defect in the quality or condition of the Goods or their failure to
meet specification is notified to the Company in accordance with these
Conditions the Company shall be entitled to replace the Goods (or the
part in question) free of charge or at the Company’s sole discretion
refund to the Customer the price of the Goods (or a proportionate part of
the price) but the Company shall have no further liability to the Customer
9.7 Except in respect of death or personal injury caused by the
Company’s negligence the Company shall not be liable to the Customer
by reason of any representation or any implied warranty condition or
other term or any duty at common law or under the express terms of the
Contract for any consequential loss or damage (whether for loss of profit
or otherwise) costs expenses or other claims for consequential
compensation (and whether caused by the negligence of the Company
its employees or agents or otherwise) which arise out of or in connection
with the supply of the Goods or their use or resale by the Customer
except as expressly provided in these Conditions
9.8 The Company shall not be liable to the Customer or be deemed to be
in breach of the Contract by reason of any delay in performing or any
failure to perform any of the Company's obligations in relation to the
Goods if the delay or failure was due to any cause beyond the
Company’s reasonable control. Without prejudice to the generality of the
foregoing the following shall be regarded as causes beyond the
Company’s reasonable control:
9.8.1 Act of God explosion flood tempest fire nuclear fall-out or accident
9.8.2 War or threat of war sabotage insurrection civil disturbance or
requisition
9.8.3 Acts restrictions regulations bye-laws prohibitions or measures of
any kind on the part of any governmental parliamentary or local authority
9.8.4 Strikes lock-outs or other industrial actions or trade disputes
(whether involving employees of the Company or of a third party)
9.8.5 Difficulties in obtaining supplies of the Goods raw materials labour
fuel parts or machinery (whether involving the Company or a third party)
9.8.6 Power failure or breakdown in machinery
9.9 Whilst the Company endeavours to ensure the Goods are not affected by
patent copyright design trade mark or other industrial or intellectual property
rights of any other person the Company does not warrant that they do not
infringe such patent design trade mark or other industrial or intellectual property
rights and shall not be responsible for any damage penalties costs and expenses
suffered by any person by reason of such infringement.
10 Insolvency of buyer
This clause applies if
10.1.1 the Customer makes any voluntary arrangement with its creditors
or becomes subject to an administration order or (being an
individual or firm) becomes bankrupt or (being a company) goes
into liquidation (otherwise than for the purpose of amalgamation
or reconstruction) or
10.1.2 an encumbrancer takes possession or a receiver is appointed of
any of the property or assets of the Customer or
10.1.3 the Customer ceases or threatens to cease to carry on business
or
10.1.4 the Company reasonably apprehends that any of the events
mentioned above is about to occur in relation to the Customer and
notifies the Customer accordingly
10.2 If this clause applies then without prejudice to any other right or
remedy available to the Company the Company shall be entitled to cancel the
Contract or suspend any further deliveries under the Contract without any
liability to the Customer and if the Goods have been delivered but not paid
for the price shall become immediately due and payable notwithstanding
any previous agreement or arrangement to the contrary
11 Insurance
Immediately upon Handover responsibility for insuring against fire storm flood
and theft lies with the Customer and is to include all of the Company’s materials
on site where the Company undertakes to carry out work to provide services of
any kind on premises other than their own. The Company shall be under no
liability whatsoever for any loss or damage occasioned to the Customer his
contractors servants employees invitees or otherwise arising from any cause
connected in any way with the execution of such works or provision of such
services and the Customer shall indemnify the Company against any claim by
third parties.
12 Health and Safety
Where the Goods are supplied to the Customer’s specification or design the
Customer shall be responsible for ensuring that so far as is reasonably
practicable the Goods are so designed as to be safe and without risk to health
when properly used that such testing and examination is carried out as may be
necessary for ensuring that the Goods are so designed and that adequate
information will be available in connection with the use of the Goods at work
about the use for which they are designed and have been tested and about any
condition necessary to ensure that when put to that use the goods will be safe
and without risk to health and the Customer shall indemnify the Company
against any claims which may be made against the Company whether under
the Health and Safety at Work Act 1974 or the regulations made thereunder or
otherwise arising out of any failure on the part of the Customer to carry out the
foregoing responsibilities of the Customer and for all costs and expenses
incurred by the Company in dealing with any such claims and rectifying any
defects in the goods.
13 Statutory and Local Government Regulations
Acceptance of this quotation constitutes a warranty and representation by the
Customer that he has complied with every applicable statute order or council
regulation or direction bye law or other lawful requirement or instruction
whether of the Government or any local or other lawful authority and in
particular that he has lawfully obtained every necessary licence permit or
authority that may be required in connection with the work
14 General
14.1 The Company is a member of a group of companies and accordingly the
Company may perform any of its obligations or exercise any of its rights
hereunder by itself or through any other member of its group provided that
any act or omission of any such other member shall be deemed to be the
act or omission of the Company
14.2 Any notice required or permitted to be given by either party to the other
under these Conditions shall be in writing addressed to that other party
at its registered office or principal place of business or such other
address as may at the relevant time have been notified pursuant to this
provision to the party giving the notice
14.3 No waiver by the Company of any breach of the Contract by the
Customer shall be considered as a waiver of any subsequent breach of
the same or any other provision
14.4 If any provision of these Conditions held by any competent authority to
be invalid or unenforceable in whole or in part the validity of the other
provisions of these Conditions and the remainder of the provision in
question shall not be affected thereby
14.5 All disputes arising out of or in connection with this present Agreement
including those considered such by only one of the parties shall be
determined by an independent Chartered Surveyor to be nominated by
the Company and the Customer or (if they fail to agree on a nomination)
by the President for the time being of The Royal Institute of Chartered
Surveyors in England and Wales on the application of either party. Such
Surveyor (whose fees shall be borne equally by the parties) shall act as
an expert and not as an arbitrator and his determination shall be final
and binding on both the parties hereto
14.6 The Contract shall be governed and be construed in accordance with the
laws of England for the time being in force and be subject to the nonexclusive
jurisdiction of the English courts.
